IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH BEFORE THE HON BLE MR. JUSTICE A.V.CHANDRASHEKARA CRIMINAL PETITION NO /2015

Transcription

1 1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 13 th DAY OF AUGUST, 2015 BEFORE THE HON BLE MR. JUSTICE A.V.CHANDRASHEKARA CRIMINAL PETITION NO /2015 BETWEEN: Sharanappa S/o Veeranna Sajjan Age: 48 years, Occ: Judicial Officer, Basavakalyan, Bidar.... PETITIONER (By Sri: V.M. Sheelavanth, Advocate) AND: State of Karnataka By PSI, Basava Kalyana, Town Police Station, Rptd. By, SPP High Court of Karnataka, Kalburgi Bench, Kalburgi.... RESPONDENT (By Sri:. Maqbool Ahmed, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the Town Police Station Crime

2 2 No.239/2014 and also the entire proceedings pursuant thereof as against petitioner, pending on the file of Addl. District and Sessions Judge, Bidar for the offence punishable under section 7, 8, 12, 13(2), 13(1) and 13(D) of P.C. Act to meet ends of Justice. THIS PETITION HAVING BEEN HEARD AND RESERVED ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT PRONOUNCED THE FOLLOWING: O R D E R An important issue has been raised in the present petition filed under Section 482, Cr.P.C. 2. The petitioner-sharanappa is a judicial officer in the cadre of Senior Civil Judge. He is under suspension on serious allegation of misconduct. The said misconduct relates to alleged demand made by him for bribe and receipt of bribe from a party to do official favour in civil cases pending before him. A criminal case has been registered in Crime No.239/14 against this petitioner for the offences punishable under Sections 7, 8, 12, 13(2), 13(1) and 13(d) of the

3 3 Prevention of Corruption Act by the respondent- Basavakalyan Town police station of Bidar District. He is arrayed as 1 st accused. 3. Consequent upon the registration of the case on the basis of First Information lodged by the Principal District and Sessions Judge, Bidar, he was taken to custody and has been remanded to judicial custody. The present petition is filed on his behalf requesting the court to quash the entire proceedings initiated in Crime No.239/ The facts leading to the filing of criminal case against this petitioner are as follows: a) One Kirtiraj, son of Kashinath Poste, a resident of Bidar, is a practising advocate. His father has filed 3 civil appeals before the court presided over by this petitioner. According to the first informant-kirtiraj, the petitioner had sent a tout to him assuring to do official

4 4 favour in the pending cases, provided he paid Rs.5,00,000/- as bribe. b) The complainant informed the Lokayukta about the same on and even lodged a complaint to the High Court Vigilance Cell on On , Kirtiraj addressed a complaint to the Principal District & Sessions Judge, Bidar, Registrar- Vigilance, High Court of Karnataka, Administrative Judge of Bidar District and Hon ble Chief Justice of the High Court of Karnataka, making a clear allegation against this petitioner for having demanded bribe from him to do an official favour in the cases filed by his father which are pending before him. c) The Principal District Judge, Bidar, forwarded the said written complaint to the Registrar-Vigilance, High Court of Karnataka, to do the needful. On receipt of the letter, the Registrar-Vigilance placed the matter

5 5 before Hon ble the Chief Justice and the Hon ble Chief Justice, in consultation with the Hon ble Administrative Judge of Bidar, directed the Registrar-Vigilance to enquire into the matter. d) On the basis of the same, the Deputy Superintendent of Police attached to the Vigilance Cell laid a trap at Basavakalyan and it appears that the petitioner was trapped while receiving bribe on Trap panchnama was drawn and the statements of material witnesses were recorded by the Vigilance Cell. e) On receipt of the report from the Deputy Superintendent of Police attached to the Vigilance Cell, the matter was placed by the Registrar-Vigilance before the Hon ble Chief Justice and obtained approval for initiating a criminal case. In turn the Registrar- Vigilance requested the Principal District Judge, Bidar,

6 6 to lodge a report in this regard to the jurisdictional police. Accordingly on , the Principal District Judge, Bidar lodged a report with the jurisdictional Superintendent of Police, Bidar, who in turn forwarded it to the jurisdictional SHO of Basavakalyan to register a case. f) That is how the case came to be registered against the accused in Crime No.239/14. On receipt of First Information from the Principal District Judge, Bidar, a case came to be registered and substantial investigation is stated to have been done by the police by collecting materials from the Vigilance Wing of the High Court of Karnataka and statements of relevant witnesses recorded by the Vigilance Cell. g) Since the case is registered on the basis of the report of the Principal District Judge, Bidar, the Registrar-General has addressed a letter dated

7 to the Chief Secretary to the Government of Karnataka to designate the presiding officer of the additional district and sessions court at Bidar to try the said case. 5. Mr.V.B.Sheelavanth, learned counsel representing the petitioner has raised an important issue in regard to the registration of a criminal case against this petitioner and continuation of the investigation by the respondent police. It is argued that the FIR had already been lodged by the first informant to the Registrar-Vigilance and on the basis of the same, investigation was taken up by the Deputy Superintendent of Police of the Vigilance Cell of the High Court and even a trap was laid and therefore, the question of registration of case in Crime No.239/14 and consequent investigation does not arise. It is his case that registration of a case in Crime No.239/14 by the respondent police is hit by the provisions of Section 162, Cr.P.C.

8 8 6. Learned counsel, Mr.Sheelavanth has relied on the Constitutional Bench decision of the Honb e apex court in the case of LALITHA KUMARI.v. STATE OF UTTAR PRADESH & OTHERS ([2014] 2 SCC 1). He has argued that substantial investigation was conducted by the Deputy Superintendent of Police of Vigilance under the guidance of Registrar-Vigilance of the High Court of Karnataka and that investigation includes laying of trap and drawing of trap panchnama and recording the statements of material witnesses. He has further argued that the Vigilance Cell of the High Court is a police station for all practical purposes and the receipt of complaint by the Registrar-Vigilance is a First Information in terms of Section 154, Cr.P.C. and that the Deputy Superintendent of Police is the SHO empowered to investigate. He has further argued that the steps taken by the Deputy Superintendent of Police of Vigilance Wing is nothing but investigation as defined under Section 2(h), Cr.P.C.

9 9 7. Alternatively he has argued that if registration of case by the respondent-police is considered to be correct and proper, then there would not have been any preliminary enquiry by the Vigilance Cell and in this regard, he has relied upon the decision in the case of LALITHA KUMARI (supra). 8. Per contra, learned HCGP, Mr.Maqbool Ahmed has vehemently argued that the steps taken by the Registrar-Vigilance on the directions of the Hon ble Chief Justice and conducting trap with the assistance of the Deputy Superintendent of Police of Vigilance Wing is not an investigation, but an enquiry conducted by the High Court and this is covered by the provisions of Article 235 of the Constitution of India. He has argued that the steps taken by the Vigilance Cell is not investigation in terms of Section 2(h), Cr.P.C. and Vigilance Cell is not a police station in terms of Section 2(s), Cr.P.C.

10 10 9. He has placed reliance on the decision of the Bench of the Hon ble Supreme Court consisting of three Judges in the case of STATE OF KARNATAKA.v. DEVENDRAPPA & ANR. [2002] 3 SCC 89 to contend that while exercising power under Section 482, Cr.P.C., the High Court does not exercise power of the court of appeal or revision and inherent power will have to be exercised sparingly, carefully and with caution. It has to be exercised, according to the learned HCGP, to do real and substantial administration of justice for which alone courts exist. He has relied on the said decision to contend that Section 482, Cr.P.C. is not an instrument to shortcut prosecution and bring about its sudden death. It is his case that the said provision is called for only when the complaint does not disclose details or is frivolous, or vexatious. Therefore, it is argued that there cannot be a meticulous analysis of the case before trial to find out whether it would end in acquittal or conviction. Learned HCGP has furnished the records

11 11 maintained by the police relating to registration of the case against this petitioner. 10. After hearing the learned counsel for the petitioner and the learned HCGP, the following points arise for the consideration of this court: 1) Whether the Vigilance Cell of the High Court of Karnataka is a police station under Section 2(s), Cr.P.C.? 2) Whether the steps taken by the Vigilance Cell on receipt of report from the first informant-kirtiraj could be considered as investigation as contemplated under Section 2(h), Cr.P.C.? 3) Whether this is a fit case to exercise the power vested under Section 482, Cr.P.C. to quash criminal proceedings initiated against this petitioner, a judicial officer?

12 12 R E A S O N S 11. Point nos.(1)and (2): Since these two points are inter-connected, they are taken up together for common discussion. Mr.Sheelavanth representing the petitioner has argued that the Vigilance Wing is a police station for all practical purposes and therefore, the report received by the Registrar General and placed before the Hon ble Chief Justice for obtaining permission is FIR for all practical purposes within the provisions of Section 154, Cr.P.,C. and therefore subsequent trap conducted and recording of statements of material witnesses is part of investigation as defined under Section 2(h), Cr.P.C. 12. Vigilance Cell means a Cell created in the High Court of Karnataka and it came to be established with effect from vide Government Order No.GAB.(4) HSC.68, BANGALORE. The Vigilance Cell has been set up as per the provisions of the High Court (Vigilance

13 13 Cell) Functions Rules, These rules have come into effect from , the day on which it was published in the Official Gazette on vide notification No.ROC.502/1965 dated These rules have been framed on the basis of power vested in the High Court under Article 235 of the Constitution of India. 13. Though the above Rules framed in pursuance to Article 235 of the Constitution is not a legislation, it has all the force of law. It is better to read Article 235 of the Constitution of India. The same is extracted below: 235. Control over subordinate courts: The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in

14 14 accordance with the conditions of his service prescribed under such law. The Rules are few in number and they are extracted below: In exercise of the powers conferred by Articles 235 of the Constitution of India and all other powers enabling the High Court in this behalf, the High Court of Karnataka makes and promulgates the following rules:- 1. Title and commencement (1) These rules may be called the High Court of Karnataka (Vigilance Cell) (Functions) Rules, (2) They shall come into force on the date of their publication in the Karnataka Gazette. 2. Definitions In these rules unless the context otherwise requires - (a) Vigilance Cell means the Vigilance Cell created in the High Court of Karnataka in Government Order No.GAD 144 SHC 68, Bangalore, dated the 4 th May, 1971; (b) High Court means the High Court of Karnataka (c) Chief Officer means the Chief Justice of the High Court of Karnataka;

15 15 (d) Special Officer means the officer holding the post of the Special Officer sanctioned by the Government; (e) Government Servant means a Government servant working in the Judicial Department and includes every gazetted and non-gazetted Officer working in the said department other than a judicial Officer; (f) Judicial Officer means a Judicial Officer in the Judicial Service of the Karnataka State and includes District Judge, Sessions Judge, Civil Judge, Munsiff and Magistrate; (g) Administrative Judge in relation to a District means a Judge of the High Court of the time being functioning as Administrative Judge of the said District. 3. The Special Officer and the Vigilance Cell shall be under the direct control of the Chief Justice in all respects and shall work according to the directions and order which the Chief Justice may from time to time issue in consultation with Administrative Judge of the District concerned. 4. The Special Officer and all the members of the staff of the Vigilance Cell shall observe strict and absolute secrecy and shall not in any manner divulge any information which may come to their knowledge in the course of their work.

16 16 5. Subject to Rule 6 below, the Special Officer shall deal with the following matters and submit the papers with his opinion to the Chief Justice for order. (a) undertaking an enquiry into any transaction in which a Government Servant of Judicial Officer is suspected or alleged to have acted for an improper purpose or in corrupt manner; (b) causing an enquiry or an investigation to be made into (i) any complaint that a Government servant of judicial officer had exercised or refrained from exercising his powers for improper or corrupt purposes; (ii) any complaint of corruption, misconduct, lack of integrity or any other kind of malpractice or misdemeanor on the part of a Government servant of Judicial Officer; or (iii) any complaint against a Government Servant or Judicial Officer relating to any act or omission or administrative procedure or practice on the ground that it is unreasonable, unjust, oppressive or improperly discriminatory; (c) initiating from time to time review of procedure and practices of administration insofar as they relate to maintenance of integrity among the Government servants and Judicial Officers;

17 17 (d) collection of such statistics and other information as my be necessary for the discharge of the above function. 6. The report of every investigation by the Vigilance Cell shall be submitted to the Chief Justice through the Special Officer. The High Court in the case of Judicial Officers and Chief Ministerial Officers of the District Courts, and the Chief Justice in consultation with Administrative Judge of the district concerned in the case of other members of the ministerial staff of the Subordinate Courts, shall consider the said report and may direct, in the case of Judicial Officer or Government servant, as the case may be.- (a) (b) (c) Criminal Prosecution; or Institution of disciplinary proceedings; or Dropping of all further action. 14. Article 235 of the Constitution of India stands on a higher footing than that of Article 227 under which the High Courts have power of superintendence over the courts subordinate to them. The control of subordinate judiciary under Article 235 of the Constitution of India is vested in the High Court. After the appointment of judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in

18 18 the High Court. Taking a decision against a member of subordinate judiciary or the ministerial staff either to hold an enquiry into the misconduct or to initiate criminal action is well within the powers vested under Article 235 of the Constitution of India. 15. What is held by the Hon ble apex court in the case of R.M.GURJAR & ANOTHER.v. HIGH COURT OF GUJARATH & OTHERS reported in AIR 1992 SC 2000 is that the High Court has control not only over subordinate judiciary but even over ministerial staff of the subordinate judiciary. 16. Article 235 of the Constitution of India is to ensure independence of the judiciary and to provide protection from executive interference. As held in the decision in the case of STATE OF ASSAM & ANOTHER.v. KUSESWAR SAIKIA AND OTHERS reported in SCC 505, exercise of power under Article 235 of

19 19 the Constitution of India by the High Court is not justiciable unless the other provisions of the Constitution have been violated. The Hon ble Supreme Court, in the case of STATE OF WEST BENGAL.v. NRIPENDRANATH BAGCHI reported in (AIR 1966 SC 447) has held that the scope and ambit of the power vested in the High Court under Article 235 of the Constitution of India covers the entire spectrum of administrative control and is not confined merely to general superintendence or to arrange the day-to-day work of the courts subordinate to it. Thus, according to the Hon ble apex court, the word control envisaged under Article 235 of the Constitution of India comprehends control over conduct and discipline of district judges. In the light of the same, an attempt will have to be made to know as to whether the Vigilance Cell of the High Court is really a police station within the meaning of Section 2(s), Cr.P.C. in order to hold that the complaint received from Kirtiraj Poste by the

20 20 Registrar Vigilance led to investigation in terms of Section 2(h), Cr.P.C. 17. As per the powers vested in the High Court under Article 235 of the Constitution of India, the High Court (Vigilance Cell) Functions Rules, 1971, have been framed and published in the Gazette on Thus the Vigilance Cell came to be established by virtue of the Govt. Order dated and it has received constitutional sanction. Rule 2(d) contemplates special officer. The Registrar-Vigilance is the head of the Vigilance Wing. Both the Registrar-Vigilance and the Deputy Superintendent of Police of Vigilance Cell directly report to the Hon ble Chief Justice and work as per the directions and order which the Hon ble Chief Justice may, from time to time, issue. Rule 3 of the said Rules enables the Hon ble Chief Justice to issue necessary directions or order, from time to time, in

21 21 consultation with the jurisdictional administrative judge of the district concerned. 18. The Special Officer has to obtain necessary orders from the Hon ble Chief Justice by submitting papers with regard to the items found in clauses (a) to (d) of Rule 5. In the instant case, the complaint received by the Registrar-Vigilance from Kirtiraj Poste was placed before the Hon ble Chief Justice who, in consultation with the Hon ble Administrative Judge of the district of Bidar, directed the Registrar-Vigilance to conduct an enquiry and submit a report. With the assistance of the police attached to the Cell, the Registrar-Vigilance held an enquiry and also laid a trap in regard to the demand allegedly made by this petitioner for bribe to do official favour relating to cases of the complainant s father pending before him. By no stretch of imagination, the Vigilance Cell can be considered as a police station and receipt of complaint

22 22 and process adopted by the Registrar-Vigilance cannot be considered as investigation. It is useful to refer to the definition found ion Section 2(s), Cr.P.C. relating to police station and the same is extracted below: police station means any post or placer declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government I this behalf. 19. If the Vigilance Cell were to be treated as a police station and the Deputy Superintendent of Police/Registrar General were to be treated as SHO, it should have been declared generally or specially by the State Government to be a police station and no such notification is forthcoming. Even otherwise, in view of ensuring the independence of the judiciary and protection of judiciary from executive interference, the State Government cannot declare the Vigilance Cell of the High Court as a police station and this can be done only if the High Court wants the State Government to do

23 23 so. Just because the police officers and officials have been posted to the Vigilance Cell, it will not clothe the State Government with any power to declare it as a police station. 20. The limited enquiry that would be held is to know whether it is a fit case to institute disciplinary proceedings. If the misconduct is of grave nature, it enables the Hon ble Chief Justice of the High Court, in consultation with the administrative Judge, to initiate criminal prosecution either by filing a complaint in terms of Section 2 (d), Cr.P.C. or by filing a report to the jurisdictional police which would be the first information in terms of Section 154, Cr.P.C. Whatever materials collected by the Vigilance Cell in the present case and whatever statements of witnesses are recorded by the Vigilance Cell are in aid of ascertaining as to whether disciplinary proceedings could be initiated.

24 Article 235 of the Constitution does not inhibit the High Court to initiate criminal prosecution so as to keep judges in the courts subordinate to it and members of the staff under control. So far as consequential departmental enquiry to be held and the action to be taken in cases of positive report is concerned, it would be governed under Article 309 of the Constitution. 22. Learned counsel for the petitioner has relied on the Constitutional Bench decision rendered in the case of LALITHA KUMARI (supra). What is held in the said decision is that there cannot be investigation unless FIR is reported in terms of Section 154, Cr.P.C. based on the report lodged by the person relating to commission of a cognizable offence. The Hon ble apex court has also gone into the aspect whether a preliminary enquiry could be held before registration of a case relating to a cognizable offence. What is amplified in the said

25 25 decision is that if the information received does not disclose a cognizable offence, preliminary enquiry may be conducted to ascertain whether a cognizable offence is forthcoming or not. A preliminary enquiry may be conducted in regard to an offence relating to matrimonial disputes, family disputes, commercial offences, medical negligence cases, corruption cases where there is abnormal delay in reporting the case. These illustrations are only exhaustive which warrant preliminary enquiry. Such preliminary enquiry can be conducted by a police officer of a police station on receipt of a report disclosing cognizable offence. It is further held that a preliminary enquiry is time-bound and in any case it should not exceed 7 days from the date of the report. It is further made clear that the causes for delay must be reflected in the general diary maintained at the police station and in case the enquiry ends in closing the complaint, a copy of such entry

26 26 should be made available to the first informant forthwith indicating the reasons therefor. 23. Section 154, Cr.P.C. requires that there must be information and it must disclose a cognizable offence. It is true that an allegation made in the complaint before the Registrar-General or before the Principal District Judge did disclose commission of a cognizable offence. But the Vigilance Cell is not a police station to register it as FIR and take up investigation in terms of Section 2(h), Cr.P.C. In the present case, the High Court has not chosen to file the complaint in terms of Section 2(d), Cr.P.C. which would enable the concerned court to hold proceedings under Section 200,Cr.P.C. On the other hand, the report submitted by the complainant to the Principal District Judge was in turn forwarded to the Registrar General and it is the basis for giving oral direction to the principal district judge at Bidar to lodge FIR to the jurisdictional police for registration of a case

27 27 relating to a cognizable offence punishable under the relevant provisions of the Prevention of Corruption Act. Therefore the report so submitted by the District Judge on the oral instructions of the Registrar-Vigilance, High Court of Karnataka, to the Superintendent of Police, Bidar, who in turn has forwarded the same to the SHO is the only first information in terms of Section 154, Cr.P.C. 24. After the receipt of First Information and registration of case in Crime No.239/14 for the offences punishable under Sections 7, 8, 12, 13(2), 13(1) and 13(d) of the Prevention of Corruption Act, the I.O. has recorded the statements of several witnesses and has also collected requisite materials from the Vigilance Cell. A case diary is also maintained relating to the progress made in which the names of complainant-kirtiraj Poste, Ramalingegowda-Inspector and in charge Deputy Superintendent of Police, Channegowda-Inspector and

28 28 other police officials attached to the Vigilance Wing have been shown as witnesses. Even the Accounts Sheristedar of Bidar district court and Veerendra-SDA working in the district court at Bidar have been shown as witnesses. Material objects like trap mahazar drawn have been collected from the Vigilance Cell. Statements of witnesses recorded would be the basis for conducting inquiry by the Vigilance have been received. In fact, the Assistant Superintendent of Police, Humnabad, has taken over the investigation and has recorded the statements of relevant witnesses and that would be the basis. At the best, the materials collected by the Vigilance Cell prior to registration of case by the police could be considered as preliminary enquiry for conducting investigation. The process so adopted by the Vigilance Cell would not come within the purview of investigation as defined under Section 2(h), Cr.P.C. since the Vigilance Cell is not a police station within the definition of Section 2(s), Cr.P.C.

29 There was no other way for the police except to register a case for cognizable offence since the First Information lodged by the Principal District Judge disclosed cognizable offence of a serious nature, that too, attributed to a judicial officer of demanding and receiving bribe. What is the effect of materials already collected by the Vigilance Cell and collected by the police would be in the realm of appreciation of evidence. It can, therefore, be said that there is absolutely no bar for the police to register a case and to conduct investigation and the materials collected by the Vigilance Cell and the statements recorded do not come within the purview of investigation and therefore registration of case by the respondent police is not hit by Section 162, Cr.P.C. 26. The Constitutional Bench decision in the case of LALILTHA KUMARI (supra) relied on by the learned counsel for the petitioner is clearly distinguishable vis-

30 30 à-vis the facts of the present case and hence it is not helpful to the case of the petitioner. Therefore, the report given by the Principal District Judge, Bidar, alone is the First Information in terms of Section 154, Cr.P.C. and the complaint lodged by Kirtiraj Poste is not FIR and therefore investigation as contemplated under Section 2(h), Cr.P.C. had not commenced when the Vigilance Cell started an enquiry. Therefore, both the points will have to be answered in the negative. 27. Point no.(3): While exercising power under Section 482, Cr.P.C., this court does not function as a court of appeal or revision. The jurisdiction vested in this court is inherent. Though it is wide, it has to be exercised sparingly, carefully and with caution, that too, when such exercise is justified by the tests specifically laid down in the section itself. It is made clear in the case of STATE OF KARNATAKA.v. DEVENDRAPPA (supra) that courts exist for advancement of justice and

31 31 that Section 482, Cr.P.C. is not an instrument handed over to the accused to cut short prosecution and bring about its sudden death in the form of quashing proceedings. Inherent power should not be exercised, according to the Hon ble apex court, to stifle a legitimate prosecution. 28. In the present case, the report lodged by the Principal District Judge really discloses the commission of a cognizable offence. When information is lodged at the police station and offence is registered, mala fides of the first informant would be of secondary importance. It is the materials collected during investigation by the police and evidence led in court which decide the fate of the accused person. Therefore this court is of the definite opinion that the case on hand does not require the use of extraordinary power vested in this court under Section 482, Cr.P.C. Accordingly the petition is liable to be dismissed.

32 In the result, the following order is passed: O R D E R The petition is dismissed. Any observation made by this court in the course of this order will not influence the learned judge of the trial court trying the case on merits. The investigating agency to expedite investigation and file a final report at the earliest. Sd/- JUDGE vgh*